Last week on PointofLaw.com, we featured a post discussing H.R. 2572, the Clean Up Government Act of 2011 which passed through the House Judiciary Committee unanimously in early December. The main objective of the new law generally, is to "amend the federal criminal code to revise and expand prohibitions against bribery, theft of public money, and other public corruption offenses."

In that entry, we included excerpts from the written testimony before the House Judiciary Subcommittee on Crime, Terrorism, and Homeland Security of Timothy O'Toole, attorney with Miller Chevalier and board member of the National Association of Criminal Defense Lawyers. In his statement, Tim expressed legitimate concern with regard to a renewed effort by Congress to pass robust public corruption legislation which, among other things, seeks to redefine the explicitly limited definition of honest services fraud as articulated by the court in the 2010 case, Skilling v. United States.

Our own James Copland, director of the Center for Legal Policy at the Manhattan Institute, had the opportunity to discuss with Tim these concerns about "overcriminalization."

Tim defines overcriminalization as:

...the rapid expansion over the last forty years of a host of criminal laws, many of which are vague, many of which overlap. Those same laws have decreased the intent requirements that traditionally were the foundational principle of criminal law that is, for the most part, [that] the criminal law would punish people when they did things with a bad intent, when they knew what they were doing was wrong and they did it anyway. Now a lot of these new expanding criminal laws, and most of them are federal criminal laws [which] reach into traditional state concerns, eliminate intent requirements. Then on top of that, they contain ever-increasing sentences.

The concern about overcriminalization in the context of the new Clean Up Government Act, as identified by Tim, is that the new law:

...tries to fix a problem that doesn't really exist. Most conduct that people would consider public corruption, virtually all conduct, is governed by the federal laws already. When we had the hearing on this, no one from the Department of Justice, none of the witnesses, could put their finger on any of sort of conduct that hadn't been punished because of the elimination of the honest services fraud law or at least parts of it by Skilling. I think that this just shows that there really isn't any conduct, [more specifically] public corruption, that is not punished now that was properly punished before Skilling.

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